Virginia Law

A. All children, aged two to 21, inclusive, whether enrolled in public school or not, who are suspected of having a disability, shall be referred to the special education administrator or designee, who shall initiate the process of determining eligibility for special education and related services.

1. Referrals may be made by any source including school staff, a parent, the Virginia Department of Education, any other state agency, other individuals, or a school-based team in accordance with 8VAC20-81-50 D 5 b. (34 CFR 300.301(b))

2. The referring party shall inform the special education administrator or designee of why an evaluation is requested and efforts that have been made to address the concerns. The referral may be made in oral or written form.

3. Upon receipt of the referral for initial evaluation for the provision of special education and related services to a child suspected of having a disability, from a source other than the school-based team, the special education administrator or designee shall:

a. Initiate the initial evaluation procedures under subsection B of this section;

b. Refer the child to the school-based team to review and respond to the request under 8VAC20-81-50 D 3 b (2); or

c. Deny the request and provide prior written notice in accordance with 8VAC20-81-170.

B. Procedures for referral for initial evaluation.

1. The special education administrator, or designee, shall:

a. Record the date the referral was received, reason for referral, and names of the person or agency making the referral;

b. Implement procedures for maintaining the confidentiality of all data;

c. Provide written notice and procedural safeguards to inform the parents in the parents' native language or primary mode of communication, unless it is clearly not feasible to do so, about:

(1) The referral for evaluation;

(2) The purpose of the evaluation; and

(3) Parental rights with respect to evaluation and other procedural safeguards;

d. Inform the parents of the procedures for the determination of needed evaluation data and request any evaluation information the parents may have on the child;

e. Secure informed consent from the parents for the evaluation;

f. Ensure that all evaluations consist of procedures that:

(1) Gather relevant functional, developmental, and academic information about the child to determine if the child is a child with a disability; and

(2) Are sufficiently comprehensive to identify all of the child's special education and related services needs, and educational needs; and

g. Ensure that all evaluations are completed and that decisions about eligibility are made within 65 business days of the receipt of the referral by the special education administrator or designee, including if the special education administrator or designee routes the referral to the school-based committee for review and action. Local school divisions may shorten the deadline of 65 business days from the date of receipt of referral for an initial evaluation of a child to determine eligibility for special education and related services. The timeframe shall not apply to the local school division if: (34 CFR 300.301(d) and (e))

(1) The parent of the child repeatedly fails or refuses to produce the child for the evaluation; or

(2) If the child enrolls in a school served by the local school division after the required 65 business days has begun and prior to a determination by the child's previous local school division as to whether the child is a child with a disability. This exception only applies if the local school division is making sufficient progress to ensure a prompt completion of the evaluation, and the parents and the local school division where the child is enrolled in school agree to a specific time when the evaluation will be completed.

h. The parent and eligibility group may agree in writing to extend the 65-day timeline to obtain additional data that cannot be obtained within the 65 business days. Local school divisions may shorten the deadline of 65 business days from the date of receipt of referral for an initial evaluation of a child to determine eligibility for special education and related services. (34 CFR 300.300(a), 34 CFR 300.309(c))

i. If the decision is to not evaluate, prior written notice, in accordance with 8VAC20-81-170, shall be given to the parent, including the parent's right to appeal the decision through due process hearing procedures. (34 CFR 300.507)

2. Parental consent requirements. (34 CFR 300.300)

a. Parental consent is not required before reviewing existing data as part of an evaluation or administering a test or other evaluation that is administered to all children, unless parental consent is required before administration to all children.

b. Parental consent for initial evaluation shall not be construed as consent for initial provision of special education and related services.

c. The local school division shall make reasonable efforts to obtain parental consent for an initial evaluation to determine whether the child is a child with a disability.

d. For initial evaluations only, if the child is a ward of the state and is not residing with the child's parent, the local school division is not required to obtain parental consent to determine whether the child is a child with a disability if:

(1) Despite reasonable efforts to do so, the local school division cannot discover the whereabouts of the parent of the child;

(2) The rights of the parents of the child have been terminated in accordance with Virginia law; or

(3) The rights of the parent to make educational decisions have been subrogated by a judge in accordance with Virginia law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.

The local school division shall then proceed with evaluating the child without finalizing the appointment of a surrogate parent.

e. If the parent does not provide consent for the initial evaluation, or fails to respond to a request to provide consent, the local school division may, but is not required to, use the dispute resolution options of mediation or due process to pursue the initial evaluation of the child. The local school division does not violate its obligation under child find or other free appropriate public education provisions if it declines to pursue the evaluation.

f. If a parent of a child who is home-instructed or home-tutored, or who is placed in a private school by the parent at the parent's own expense, does not provide consent for initial evaluation, or the parent fails to respond to a request to provide consent, the local school division may not use mediation or due process to pursue the initial evaluation.